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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article providing an "update on certificates from Traditional Healers". We also discuss three new LAC judgments: The first case recognises that reciprocal duties arise for the employee in an incapacity hearing. The second case considers the situation where a sanction imposed is in excess of that recommended in a disciplinary policy. The third case revisits whether it is necessary to lead evidence on the breakdown in the trust relationship.

This public newsletter is a free edited version of the subscriber newsletter.


Dismissal for ill-health: The reciprocal duties of employer and employee

The Code of Good Practice: Dismissal (in Items 10 & 11) imposes clear obligations on an employer in an incapacity situation. An employer must consider several steps before contemplating dismissal for ill health or injury:
  • the extent of the injuries / ill health;
  • all possible alternatives short of dismissal;
  • alternative employment or adapting the employee's duties;
  • counselling and rehabilitation in cases of alcohol or drug abuse; and
  • take greater steps to accommodate incapacity arising from the work situation.
There is no explicit mention in the Code of any employee obligations, particularly in establishing the nature and extent of the incapacity. This arose in the recent LAC judgment in Parexel International (Pty) Ltd v Chakane, T N.O and Others (JA39/2018) [2019] ZALAC 50 (27 June 2019).

In this case, within 4 months of starting work as a clinical research nurse, the employee fainted and hit her head as a result of a work related incident. She lost consciousness and required medical help. 3 medical reports were submitted to the employer - with varying descriptions of the cause and the consequences. From July 2010 the employee was on special leave and permitted to take her full sick leave entitlement and annual leave. By December 2010, she had been off work for almost six months. The employer stopped paying her salary but continued contributions to medical aid, provident fund and life cover.

Early in 2011, a psychiatrist reported that the employee's main medical problem was a mood disorder that was not related to the injury on duty but was severe enough to cause "severe functional limitations". This psychiatrist reported that the employee's condition was manageable and should not lead to permanent disability.

The employer made several attempts to hold an incapacity hearing, but it could not proceed either because the employee could not attend or a medical report had not been presented. At the end of March the employee indicated that she could not comment on her prospects of recovery as this was subject to the advice of a medical practitioner and that she did not know when she would be able to work again.

The employer informed the employee that if she could not prove that she was incapacitated or sick, she had to return to work on 1 April 2011. She reported for duty for 3 days but then her husband reported she had back pain and a headache and could not work. The employer informed her that she was to submit a medical report containing the nature of the illness, prospect of recovery, and whether she would be able to resume normal duties. No report was received.

An incapacity enquiry was convened, but the employee's husband informed the employer she would not attend and accepted that the enquiry could continue in her absence. The employer terminated her services with immediate effect due to her ill-health, and the reason provided was that she was incapable of performing the work for which she had been employed.

The dismissal was referred to arbitration where the commissioner found that the employer had failed to prove that the employee was incapable of performing her duties. The commissioner also concluded that the employee was not provided with an opportunity to participate fully in the process and that the dismissal was procedurally unfair. She was reinstated retrospectively with 10 months' back pay.

On review, the Labour Court found that the arbitrator could not be faulted for finding that the employer had failed to enquire into the extent to which she was able to perform her work, and to explore all other possible alternatives short of dismissal. The LC dismissed the review application with costs.

On appeal, the Labour Appeal Court confirmed that our courts have recognised that an employer is not expected to tolerate an employee's prolonged absence from work for incapacity due to ill health, and may exercise an election to end the employment relationship. The LAC noted that the employee was off work for over 9 months, during which time she provided medical certificates indicating different reasons for her absence. Given this, the employer requested her to provide a medical report indicating the reason for her extended absence, the prognosis for her recovery and if she was to recover, the period within which such recovery could be anticipated. Yet in spite of offers of assistance from the employer, she provided no such medical report. The LAC found that, in failing to provide this, the employee frustrated a proper consideration of the reasons for her extended absence.

The LAC held that that the arbitrator's finding that the employer did not explore alternatives to accommodate the employee, failed to take into account that the employee was incapable of returning to work and had accepted as much. The commissioner had also disregarded the evidence regarding the reasons for, and the extent of, the employee's absence from work. The LAC overturned the LC judgment and found the employee's dismissal to have been procedurally and substantively fair.

This case establishes this principle: an employer is not required to hold an incapacitated employee's position open indefinitely when there is a failure to provide the reasons for, and anticipated extent of, continued absence. In these circumstances an employer's failure to consider alternatives short of dismissal is not unfair. This case makes it clear that the incapacity investigation involves reciprocal duties, and an employee must assist the employer to assess the extent of the incapacity by providing the necessary medical information required.

Where a sanction is in excess of the recommended sanction

Many disciplinary codes or procedures have recommended sanctions. The reason for this is because disciplinary rules are intended to create a degree of certainty and consistency in the application of discipline in the workplace. It follows that departures from a code should not be arbitrary or for no valid reason. The LAC recently in Mushi v EXXARO Coal (Pty) Ltd Grootegeluk Coal Mine (JA62/2018) [2019] ZALAC 44 (13 June 2019) had to consider the fairness of an employer imposing a heavier sanction than that recommended in its code.

Prior to his dismissal the employee had been employed by a coal mine for 24 years. Whilst on duty driving an oversized coal haul truck (the wheel size of which exceeded the height of two adults) he reported to his foreman that the shovel operator was loading the truck in an unsafe manner. The foreman instructed the employee to continue loading and undertook to observe the loading process. Shortly thereafter the foreman informed the employee via radio that he would board the truck at the loading area. The employee refused to let the foreman board the truck at this area. As the foreman walked towards the loading area the employee moved the truck forward causing the foreman to have to move out of the way.

At the ensuing disciplinary hearing, the employee admitted that he had behaved improperly, but not that he had undermined the authority or threatened the life of the supervisor. The disciplinary code, which was stated to be a guideline, provided for a final written warning for this type of misconduct. The employee was nevertheless dismissed from his employment for having refused to obey an instruction of a foreman, unsafe acts committed while driving the truck and improper behaviour in operating the truck after the foreman was proceeding towards it.

Aggrieved with his dismissal the employee referred a dispute to the CCMA. At arbitration, the parties agreed that the misconduct committed was not in dispute and that the issues for determination by the arbitrator were the appropriateness of the sanction and the issue of consistency, since the foreman had not been disciplined. No oral evidence was presented by either party at arbitration. The arbitrator found that in not also taking disciplinary action against the foreman there had been no inconsistency by the employer in the application of discipline. However the commissioner found that there had been a splitting / mutating of charges, and said that "the number of the charges by mutating them does not make the act to be more severe than it would ordinarily be. In any event, there is no dispute about the fact that it is not a dismissible offence at first instance. The respondent is not correct when it argues that it has a zero tolerance attitude towards an offence of this nature."

In finding the sanction of dismissal imposed to be inappropriate, the arbitrator had regard to the fact that the employee had not been charged with gross insubordination, there were no aggravating circumstances present to prove that progressive discipline was inappropriate, the employee had a long period of service, a clean service record and had shown remorse for his conduct. The dismissal was found to be unfair and the employee was reinstated retrospectively into his employment, with no loss of remuneration and back pay of R77 398.72 awarded. The employee was also given a final written warning.

The employer sought the review of the arbitration award by the Labour Court. In its judgment the Labour Court found the award reviewable on the basis that the employer had been prejudiced by not having been given an opportunity to address the issue raised by the arbitrator relating to the duplication or "mutation" of charges. The Court took the view that it did not matter that the misconduct had not been termed "gross" insubordination and that since the employee had admitted endangering the life of the foreman, it was inconceivable that dismissal was not a fair sanction. The award was set aside and the dismissal was found to be fair.

On appeal the Labour Appeal Court held that even where a disciplinary code is expressed as a guideline there must be a plausible and reasonable justification for the sanction imposed, having regard to the gravity of the misconduct and relevant aggravating or mitigating factors. An employer is required to prove that a sanction of dismissal which exceeds the recommended sanction provided in the disciplinary code, is fair. This the employer had not done. The appeal was upheld with costs, with the Labour Court's order being set aside.

What this means on a practical level is that if a more serious sanction is given than the recommended sanction, the employer will have to lead evidence at the arbitration that sufficiently motivates the reasons for that harsher sanction.

Once again: proving that the trust relationship has been broken

To understand how our law and practice has evolved its understanding on the role of trust in the employment relationship, we need to go back to the Edcon case which involved a dismissal in 2004, the fairness of which was disputed through the CCMA and the courts, culminating in an SCA judgment in 2009 in Edcon v Pillemer (191/2008) [2009] ZA SCA 135 (5 October 2009). Despite serious dishonesty, the employer had not led evidence that the working relationship had broken down. That was enough, the SCA said, to make the dismissal unfair.

A different approach was however subsequently applied in Woolworths (Pty) Ltd v Mabija and Others (PA3/14) [2016] ZALAC 5 (19 February 2016), in which Musi JA said the following (at para 21):
'The fact that the employer did not lead evidence as to the breakdown of the trust relationship does not necessarily mean that the conduct of the employee, regardless of its obvious gross seriousness or dishonestly, cannot be visited with dismissal without any evidence as to the impact of the misconduct. In some cases, the outstandingly bad conduct of the employee would warrant an inference that the trust relationship has been destroyed. It is however always better if such evidence is led by people who are in a position to testify to such break down.'
A similar approach was adopted in Impala Platinum Ltd v Jansen and others (2017) 26 LAC 1.11.4 also reported at [2017] 4 BLLR 325 (LAC) that found that where an employee is found guilty of gross misconduct it is not necessary to lead evidence pertaining to a breakdown in the trust relationship.

The need for evidence about the breakdown in the trust relationship has again surfaced in the recent LAC case of Autozone v Dispute Resolution Centre of Motor Industry and Others (JA52/2015) [2019] ZALAC 46; [2019] 6 BLLR 551 (LAC); (2019) 40 ILJ 1501 (LAC) (13 February 2019). The employer's Regional Operations Manager instructed the employee to employ casual labour to clean up waste and rubble at the back of the store. The employee then recruited three casual labourers. In the presence of the employee, the Regional Operations Manager informed the three casuals that they would each be paid R50 for the task. When the task was completed, the Regional Operations Manager, in the presence of the branch manager, instructed the employee to obtain R150 from the cashier. Despite this instruction, the employee approached the cashier and requested R180.

Later the three casuals approached the branch manager and complained that the R50 payment to each of them was too little for the work done. When the branch manager was informed by the cashier that she had in fact handed R180 to the employee, he confronted the employee and asked why he had requested R180 and only paid over R150. The employee responded by taking the R30 out of his pocket and later explained that he had acted on his own initiative to pay the casuals more and had withheld the R30 balance until the work was complete. The employee was dismissed on grounds of dishonesty (theft, misappropriation of company funds or attempted theft or misappropriation).

At arbitration, the arbitrator concluded that the employer had proved that the dismissal was for a fair reason and held that the dismissal was substantively fair. On review, the Labour Court held that there was no evidence that showed how the misconduct impacted on the trust relationship between the parties. In the absence of such evidence, the arbitrator ought to have found that the dismissal unfair because there was no proof that the trust relationship between the parties had broken down.

On appeal, the Labour Appeal Court held that the evidence as a whole established that the employee deliberately and falsely represented that the amount to be paid to the casuals was R180 instead of R150, and that he intended to pocket the difference for his own benefit. The LAC said that it was not necessary for the employer in such circumstances to have produced evidence to show that the employment relationship had been irreparably destroyed. The nature of the offence and the manner of its commission support a conclusion that the continuation of the relationship had become intolerable. The LAC upheld the appeal and overturned the LC order, the effect of which was to confirm the arbitrator's award that the dismissal was fair.

The LAC did say, in line with the Woolworths judgment, that an employer relying on irreparable damage to the employment relationship to justify a dismissal, would be prudent normally to lead evidence about that, unless the conclusion that the relationship has broken down is apparent from the nature of the offence and/or the circumstances of the dismissal. Where the offence in question reveals dishonesty or deceit, the LAC accepted that the employer probably will lose trust in the employee due to the untrustworthy behaviour, rendering a continued relationship intolerable.

What do we advise? We suggest it is safer in all cases to lead evidence from a witness, that the employee's misconduct has led to a breakdown in trust, making a continued relationship intolerable: particularly so, when the employee leads evidence that the trust relationship has not broken down (remember that in Edcon there were consequences for the employer for not responding to the evidence produced by the employee). But where you have failed to do so, the judgments in Woolworths, Impala Platinum and Autozone discussed above will assist in arguing that the nature of the offence itself shows that a continued relationship has become intolerable.

Update on certificates from Traditional Healers

By Prof Alan Rycroft

Worklaw has recently received subscriber helpline queries on whether there has been any progress in the registration of traditional healers, a requirement for medical certificates to be accepted under s23(2) of the BCEA. Whilst the Traditional Health Practitioners (THP) Act has been passed and an interim traditional healers' council has been established, there appears to be little progress in the registration of traditional healers.

In this article Prof Rycroft discusses how the courts have dealt with related issues and suggests a practical way forward to deal with this situation.

Read more (note - only available to Worklaw subscribers)

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August 2019
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